KABUL APPEALS COURT: 20 YEARS IN DARI KORAN CASE

UNCLAS SECTION 01 OF 02 KABUL 000361

SIPDIS
SENSITIVE

E.O. 12958: N/A
TAGS: KPOL PREL PHUM AF
SUBJECT: KABUL APPEALS COURT: 20 YEARS IN DARI KORAN CASE

REF: A. KABUL209

B. 08KABUL2833


1. (SBU) Summary. On February 15 an Afghan appellate court
ordered 20-year prison sentences for Ghous Zalmai and Mullah
Qari Mushtaq in connection with their publication and
distribution of a Dari language Koran. (Reftel A) This
decision affirmed the primary court's September 2008 order.
Zalmai and Mushtaq immediately appealed to the Afghan Supreme
Court, which has five months to decide the case. Human
rights actors widely but privately condemned the decision and
are strategizing over how best to respond.

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The Judge's Justification
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2. (SBU) The judge anchored his decision on Article 130 of
the Afghan Constitution which states, "if there is no
provision in the Constitution or other laws about a case, the
Courts shall, in pursuance of Hanafi jurisprudence, and,
within the limits set by this Constitution, rule in the way
that obtains justice in the best manner." Thus, the judge
did not identify a specific crime the two had committed under
the Afghan penal code. In his summation of the case, the
judge stated Zalmai and Mushtaq erred by publishing the book
without accompanying Arabic verses and by using allegedly
irreverent language in Zalmai's one page introduction to the
book. The judge did not identify or allege errors in the
Dari translation. He spoke for about 30 minutes in his
condemnation of Zalmai and Mushtaq, at one point quoting from
a Pakistani legal text, stating "those who commit this type
of act shall be treated, if crazy, and shall be killed, if
not crazy."


3. (SBU) The verdict against Zalmai and Mushtaq was not a
surprise. The judge, Salaam Qazizada, sentenced Sayad Perwiz
Kambakhsh to 20-years' imprisonment for allegedly downloading
and distributing an article on women's rights in Islam.
(Reftel B) Zalmai's attorney told poloff the decision was
anticipated and characterized the proceeding as solely
political.

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Procedural Flaws
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4. (SBU) The Afghan Independent Human Rights Commission
(AIHRC) and Norwegian poloff identified several flaws with
the proceeding: the judge did not allow defense lawyers to
call witnesses or question prosecution witnesses; the judge
ignored the defense lawyer's argument that the two did not
translate the book, but rather only financed its publication
and distributed it; the 20-year sentence is arbitrary and not
based on any provision of the Afghan penal code; there was no
clear application of Sharia law in that the judge did not
consider the defendants' apologies (a widely understood
principle of Sharia law is that those who apologize must be
forgiven); there was no systematic use of witnesses; and
there was evidence of political pressure.


5. (SBU) Poloff identified several other procedural problems
relating to the 2/15 testimony of two prosecution witnesses.
An associate judge read the witnesses' statements, but did
not permit the defense lawyers to question the witnesses.
The witnesses' statements were suspiciously identical in
content and phrasing. Third, the judge identified a
contradiction between Zalmai's and Mushtaq's testimony:
Zalmai claimed Mushtaq reviewed and approved the text before
it was published; Mushtaq denied he had done so. However,
the judge did not resolve this contraction, but simply
flagged it as a difference. Finally, the judge behaved as if
he were the prosecutor throughout the hearings, showing a
clear assumption of the defendants' guilt.

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Next Steps
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6. (SBU) AIHRC assigned a team of three lawyers to analyze
the case's history, identify procedural flaws, and compare
the judge's basis for decision with established Sharia
law. AIHRC will forward the results in a letter to the Chief
Justice of the Supreme Court, President Karzai, and the
media. AIHRC also plans to organize radio and television
programs with sympathetic religious leaders and AIHRC
representatives to elaborate on the legal
irregularities and raise public awareness of the true facts
of the case.


7. (SBU) The Europeans are developing a strategy and have
organized several meetings to identify an appropriate

KABUL 00000361 002 OF 002


response. A public statement is unlikely as AIHRC has warned
them it would negatively affect the chances of success in the
Supreme Court. Zalmai's brothers asked poloff for Embassy
assistance in raising the case with the government. Without
additional international pressure, Zalmai will never receive
a fair hearing, his brothers argued.
WOOD